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DOJ spox to USA Today: 'I will save what I have for another outlet'

By Dylan Byers

09/19/13 01:44 PM EDT

A Department of Justice spokesperson who initially offered to provide sources to USA Today has reversed that decision on the grounds that the reporter was "biased" and would not forego his story even if the sources undercut its premise.

Instead, the DOJ spokesperson told the reporter he would "hold onto the information and use it after the fact, with a different outlet that is more objective."

The article, which USA Today is expected to publish on Thursday afternoon, concerns the fact that the DOJ's Office of Professional Responsibility (OPR) did not launch an investigation into government lawyers who were believed to have misrepresented the scope of the government's electronic surveillance efforts.

In August, USA Today's Brad Heath submitted a Freedom of Information Act request to the OPR for records related to the Foreign Intelligence Surveillance Court (FISC) opinions regarding the lawyers respresentations. The OPR responded last week and said that while it had granted the request, their search failed to locate any documents pertaining to the request -- because the OPR never conducted an investigation.

Planning to run a story on the lack of an OPR inquiry, Heath went to DOJ spokesperson Brian Fallon for comment. In their email exchange, which Heath published online on Thursday, Heath noted that "a former OPR attorney" had said the office "would ordinarily review a case" such as this "and that it should have at least opened an inquiry."

Fallon disagreed. As he saw it, OPR never conducted an investigation because there was no basis for one. Fallon also said he had two potential sources -- from OPR and FISC -- who would be willing to tell Heath as much, but only on the grounds that Heath would consider killing his article if those sources convinced him there had been no cause for an investigation.

Heath was willing to speak to the sources, but he refused to make any promises about his article. That's when Fallon decided to withdraw the offer.

"I have an answer from OPR, and a FISC judge. I am not providing it to you because all you will do is seek to write around it because you are biased in favor of the idea that an inquiry should have been launched/ So I will save what I have for another outlet after you publish," Fallon wrote in an email dated Sept. 17.

The following day, Heath replied: "Last try: I spoke to my editors again this morning; our view is that we’ve been more than patient on this. If you have answers to my questions, please share them. If not, I don’t see that we have any alternative but to write what we have been told. Please let me know by noon."

"I'm done negotiating," Fallon replied. "Go forward if you want, and I will work with someone else afterwards explaining why what you reported is off base."

"Your call," Heath wrote. "For the record, I’m not trying to negotiate. I’m trying to get answers to basic questions."

Fallon disputed that, arguing Heath was "not actually open-minded to the idea of not writing the story."

"You are running it regardless. I have information that undercuts your premise, and would provide it if I thought you were able to be convinced that your story is off base," Fallon wrote. "Instead, I think that to provide it to you would just allow you to cover your bases, and factor it into a story you still plan to write. So I prefer to hold onto the information and use it after the fact, with a different outlet that is more objective about whether an OPR inquiry was appropriate."

Replied Heath, "If we were planning to run it regardless, we would have done it Friday. If the premise is wrong, I want to know. I asked these questions – and waited for answers – because I’m interested in the answers. You can’t seriously ask me not to publish something on the basis of information you won’t share."

In an email to POLITICO, Fallon explained why he didn't think Heath should be reporting on the lack of an OPR investigation.

"Brad is reporting on the lack of an OPR inquiry, but that only seems newsworthy if one might be warranted in the first place. It isn’t," he wrote. "For the last several days, we asked Brad to exercise discretion rather than write a story that leaves a false impression that there was any evidence of misconduct or basis for an inquiry. We proposed putting him in touch with people who could independently explain why no inquiry was warranted in hopes it might persuade him. When it became clear he intended to publish his story regardless, there was no point in asking any of those people to reach out."

Heath did not respond to a request for comment.

UPDATE (3:45 p.m.): Heath emails:

Sorry – you ended up in the spam filter. The story is posted... beyond that, I don’t have anything to add.